Cao and Minister for Home Affairs (Migration) - [2018] AATA 1261

Cao and Minister for Home Affairs (Migration) [2018] AATA 1261 (14 May 2018)
Division:GENERAL DIVISION
File Number(s): 2018/0885
Re:Van Thuc Cao
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member R. Pintos-Lopez
Date:14 May 2018
Place:Melbourne

The decision under review is affirmed.

[sgd]........................................................................
Senior Member R. Pintos-Lopez
MIGRATION – character test failed – drug cultivation – bridging visa refused – discretion to exercise s 501(1) - suspended sentence consideration – escape from detention – decision affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Ayache and Minister for Immigration and Border Protection [2018] AATA 310
Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113
Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409
Re Do and Minister for Immigration and Border Protection [2016] AATA 390
Hong v Minister for Immigration and Multicultural Affairs [1999] FCA 1567
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Indigenous Affairs v MJD Foundation Ltd (2017) 351 ALR 270
Minister for Immigration Affairs v Pochi (1980) 44 FLR 41
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Minister for Immigration and Multicultural and Indigenous Affairs v Watson (2005) 145 FCR 542
Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500
Re Maikantis and Minister for Immigration and Border Protection [2018] AATA 40
Re Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Uelese v Minister for Immigration & Border Protection (2016) 248 FCR 296
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Ministerial Direction No. 65
REASONS FOR DECISION
Senior Member R. Pintos-Lopez
14 May 2018

The Applicant seeks review of a decision, dated 15 January 2018, made by a delegate of the Respondent, the Minister for Home Affairs (the Minister), pursuant to s 501(1) of the Migration Act 1958 (Cth) (the Act) to refuse to grant the Applicant a Bridging E (class WE) visa (the Bridging Visa).
The decision to refuse to grant the Bridging Visa was made because a delegate of the Minister:
(a)determined that the Applicant did not pass the character test as defined in s 501(6) of the Act as he has a substantial criminal record (as defined in s 501(7)); and
(b)exercised the discretion pursuant to s 501(1) to refuse to grant the Applicant the Bridging Visa.
For the reasons that follow, the decision is affirmed.
I. BACKGROUND AND RELEVANT FACTS
The Applicant was born in Vietnam on 7 September 1985.
On 29 July 2018, he first arrived in Australia as a lawful non-resident on a Student (Temporary) (class TU) visa.
On 23 November 2010, the Applicant was arrested by Victoria Police and charged with offences for what is referred to as “crop sitting” at a house in relation to the cultivation of cannabis in a commercial quantity. At the house, police located 391 cannabis plants weighing 31.66 kg in a number of rooms. The cannabis plants were growing with the use of hydroponic watering systems and under lights. The electricity supply had been illegally bypassed.
On 8 February 2011, the Applicant’s Student (Temporary) (class TU) visa was cancelled.
On 9 August 2011, after pleading guilty, the Applicant was sentenced to 21 months incarceration, with 12 months suspended for two years in relation to the illegal cannabis cultivation.
On 23 August 2011, the Applicant, after completing his incarceration, was transferred to the Maribyrnong Immigration Detention Centre to be held in immigration detention.
One week later, on 30 August 2011, the Applicant, together with two others attempted to escape the detention centre by scaling a fence. Only the Applicant was successful in escaping custody.
Following his escape, the Applicant remained and worked unlawfully in the community for approximately two years.
On 25 August 2013, the Applicant married Thi Thanh Ha Vu.
On 3 September 2013, the Applicant was caught by police and returned to immigration detention.
On 5 September 2013, the Applicant applied for a:
(a)Partner (Residence) (class BS) subclass 801 visa (the Partner visa);
(b)Partner (Temporary) (class UK) subclass 820 visa (the Temporary Partner visa); and
(c)Bridging E (class WE) visa pending consideration of his application for the Temporary Partner visa (the First Bridging visa).
Around September 2013, the application for the First Bridging visa was refused and that decision was then affirmed by the then Migration Review Tribunal (the MRT).
On 4 November 2013, the Applicant applied for a second Bridging E (class WE) visa (the Second Bridging visa). Later in November, that application was refused but, following an application for review before the MRT the decision was remitted back to be re-considered.
In around December 2013, the Applicant’s applications for a Temporary Partner visa and Partner visa were refused. The Applicant appealed those decisions with the result that the MRT remitted the decision to refuse the Temporary Partner visa.[1]
[1] On 12 December 2013, the Applicant appealed the Department’s decision to refuse his Temporary Partner visa to the MRT. On 19 March 2014, the MRT set aside the decision of the Respondent and remitted the decision back to the Respondent as the MRT found that the Applicant and his wife were in a genuine spousal relationship.
On 9 May 2014, the Applicant was notified that the Second Bridging visa was granted as a delegate of the Minister for Immigration and Border Protection had decided not to exercise the discretion to refuse his application pursuant to s 501(1) of the Act. The letter provided further:
you are warned that if you engage in any further conduct that might bring you within the scope of section 501, cancellation of any visa that you hold and/or refusal of any future visa applications may be considered and if so, the fact of this warning may weigh heavily against you.[2]
[2] G docs 77.
The Applicant signed an acknowledgement, on 13 May 2014, that he had received the notice of the decision not to refuse the grant of his Second Bridging visa, which stated:
I understand that I can again be considered for refusal or cancellation of any visa granted to me if further information of relevance comes to the attention of the Department at any time in the future and that if this happens, my past conduct and in previous relevant information can also be taken into account.[3]
[3] G docs 79.
On 24 June 2014, the Temporary Partner visa was granted, and, on that day, the Applicant was released from detention. Thereafter followed various requests for information by the Department of Immigration and Border Protection in relation to the application for the Partner visa.
On 26 September 2017, the Partner visa was refused.
On 28 September 2017, the Applicant sought review of the refusal of the Partner visa to the Migration and Refugee Division of this Tribunal. That application for review of the Partner visa decision is separate to this review. On that day, he also applied for a further Bridging E (class WE) visa (the Third Bridging visa) in association with his application for review.
On 4 October 2017, the Applicant was returned to immigration detention and has spent most of his time thereafter in detention on Christmas Island.
On 26 October 2017, an officer of the Department of Immigration and Border Protection wrote to the Applicant’s legal representative advising him that a preliminary s 501 assessment had been completed. The officer stated:
I understand that your client has previously been assessed under section 501 in 2014, however since that time, the Australian government has made several changes to character related legislation and policy reflecting the high priority the government places on protecting the Australian community from the risk of harm. New or further information regarding a client’s character may also necessitate assessment under s501.
Your client’s visa application has been assessed as requiring a new section 501 character assessment. One of the VACCU Assistant Managers will be reallocating this case next week.[4]
[4] G docs; G2 – 201.
On that same day, the Applicant lodged another application for a Bridging E (class WE) visa on departure grounds, in effect a fourth application for a bridging visa, to allow him to return to Vietnam while the appeal in relation to the Partner visa was pending; as defined above, this is referred to herein as the Bridging Visa.
On 3 November 2017, an officer of the Department issued a “Notice of Intention to Consider Refusal of the Bridging Visa under s 501 of the Act” stating:
In December 2014 the Australian government made changes to law and policy relating to persons of character concern, reflecting the high priority the government places on protecting the Australian community from the risk of harm.[5]
[5] G docs; G2 219 to 220.
On 2 January 2018, an officer of the Department sent an email to the Applicant’s legal representative noting that further information had been received, which may be taken into account in considering whether to refuse the Applicant’s visa application. The officer invited the Applicant to comment on that information. The email attached a document entitled “Received from Vic Police on 22/12/17”. The document states that the Applicant is being investigated in relation to a commercial hydroponic cultivation that was detected in 2015.
On 15 January 2018, the Bridging Visa on departure grounds was refused pursuant to s 501(1) of the Act by a delegate of the Minister for Home Affairs and Minister for Immigration and Border Protection. It is that refusal that is the subject of the present application for review.
On 19 February 2018, the Applicant was given written notice of the 15 January 2018 decision. The written notice stated that the Applicant’s Third Bridging visa application had also been refused by operation of s 501F(2) of the Act. The written notice attached a statement of reasons that referred to allegations made by Victoria Police, that is that the Applicant drove to a property in Box Hill, which he is alleged to have leased from the owner in 2015 and which was found to have been used for the commercial hydroponic cultivation of cannabis. The statement of reasons states:
While I note Mr CAO has not been further convicted, I find that this is a very serious matter and it is not without some substance that Mr CAO would be under suspicion of this charge/s by the Victoria Police.
I acknowledge that Mr CAO has not been convicted of any further convictions, however I note that Mr CAO is alleged to have engaged in conduct of character concern as per the statement from Victoria Police… It is therefore not without some substance that Mr CAO would be under suspicion of these claims.[6]
[6] G docs; G2 31 – 43 at [36]-[37].
On 22 February 2018, the Applicant applied to the Tribunal for a review of the 15 January 2018 decision to refuse the Bridging Visa on departure grounds.
II. A PRELIMINARY MATTER – THE CONSEQUENCE OF THE 2014 DECISIONS
The Applicant makes various submissions centred upon the two decisions made in 2014 to not refuse the grant of visas. It is submitted that those decisions, which took into account the relevant offending (in relation to the cultivation of cannabis) and the escape from detention, ought affect my present consideration. It is necessary to consider those submissions as a preliminary matter in these reasons as, in part, they go to the lawfulness of the decision under review.
The Applicant submits that in 2014, a delegate of the Minister made a decision (or two decisions) under s 501(1) of the Act not to refuse his application for a visa on the basis of, in effect, the same facts that are presently before the Tribunal. The Applicant’s submissions, written and oral, centred upon the significance of the 2014 decisions (which I will refer to as the 2014 decision) but did not set out those submissions comprehensively in any one place. In order, to consider those submissions, it is necessary to set them out and summarise them as follows:
(a)First, that the 2014 decision was the exercise of a power that, once exercised in 2014, was exhausted. The consequence of this submission was not fully elaborated but it follows that what is argued means that the present reviewable decision was made without power (effectively that the decision was made functus officio) and, accordingly, there is no decision to be reviewed by the Tribunal.
(b)Second, the Applicant submits, in the alternative, if it is accepted that the power could be exercised if there were a new and relevant fact, that the alleged suspicion of involvement into the commercial cultivation of cannabis in 2015 ought be disregarded as it is an unfounded and untested suspicion. Accordingly, the submission goes that there being no new fact that there can be no fresh exercise of s 501(1) of the Act. In a similar manner to the first submission, the logical consequence of this submission is that the reviewable decision was invalid and the Tribunal has no decision to review, and could not, in any event, make its own decision as there is no new fact to allow the power to be exercised.
(c)Third and alternatively, accepting that there is power notwithstanding what is said in the first and second submission, it is submitted that the current decision must be made not to refuse the application, that is that it must be made identically to the 2014 decision was made, because to not do so would amount to an abuse of process or be legally unreasonable as was expressed in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
For the reasons that follow, I do not accept those submissions.
A. The Applicant’s submissions in relation to the 2014 decision
On 9 May 2014, the Applicant was notified of a decision by a delegate of the Minister for Immigration and Border Protection to not exercise the discretion to refuse his application for the Second Bridging visa under s 501(1) of the Act. The notice letter stated:
Your current application will now be returned to the Melbourne office to assess whether all other criteria for the grant of a visa are met.[7]
[7] G docs 77.
It is not clear whether the “current application” returned to be assessed was the application for the Second Bridging visa or the Temporary Partner visa. For the reasons that follow, the answer to that question does not affect my determination of the Applicant’s preliminary submissions.
On 24 June 2014, the Applicant was notified of a decision granting him the Temporary Partner visa pending notification that his Partner visa had been decided or the application was withdrawn.
The Applicant’s Statement of Facts, Issues and Contentions (the Applicant’s opening submissions) submits that the decision notified on May 2014 to not refuse the Second Bridging visa was made:
(a)on the basis that the Applicant did not pass the character test because of his 2011 conviction for cultivation of cannabis, and thus enlivening the discretion pursuant to s 501(1) of the Act that followed; and
(b)involved the exercise of the discretion in his favour, with full knowledge of the Applicant’s conviction in 2011 and with knowledge of his escape from immigration detention in 2011.
Again, in June 2014, it is submitted that the Applicant was granted the Temporary Partner visa because a delegate of the Minister determined that the Applicant satisfied the public interest criteria.
The Applicant’s opening submissions state:
It is submitted that it would be an abuse of process, tantamount to a “double jeopardy” situation, if a different decision was made now made with regard to the grant or refusal of a visa on character grounds based on the 2010 criminal conduct, to that which was made by two ministerial delegates in May and June 2014.
Further, the opening submissions state:
In 2014 when there was not the evidence of three years of law-abiding living in the Australian community, a delegate of the Minister decided not to exercise the discretion to refuse to grant Mr Cao a visa. Now, in 2018, with the knowledge that there has been no further offending since 2010, the Tribunal must engage in a balancing exercise between the likelihood of future harm which must be seen as low, and the tolerance of the risk of harm, which in the circumstances could not be less than it was in 2014. It is submitted that no weight ought to be given to the police interview of Mr Cao in September 2017, as no charges against Mr Cao have arisen from the police investigation.
After closing, the Applicant provided submissions entitled “Closing Submissions on Behalf of the Applicant Van Thuc CAO” (the Applicant’s closing submissions). These were referred to in oral closing. The closing submissions state that the police allegations are nothing more than unsubstantiated suspicions that ought to be given no evidential weight. The closing submissions state that:
The prior consideration in 2014 of Mr Cao’s character pursuant to section 501(1) of the Migration Act 1958 is extremely significant in the Tribunal’s consideration of Mr Cao’s applications for a BVE.
Primarily, it is submitted, once the discretion of power in section 501(1) has been exercised by a delegate of the Minister, that power is exhausted, and cannot be exercised again under that provision – [citing Watson].
The closing submissions then referred to Minister for Immigration and Multicultural and Indigenous Affairs v Watson (2005) 145 FCR 542 and Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500 before submitting:
Even if the Tribunal considers that the authority of Watson should be distinguished, it is submitted that it would be a denial of natural justice to reconsider the decision made in 2014, unless as Dowsett J said, there is a factual change, or a change in policy. It is submitted that there are no relevant changes to Ministerial Direction 65, from Ministerial Direction 55, that bear upon a consideration of the discretion to cancel or refuse a visa under section 501(1) to the extent that would permit a reconsideration of the 2014 decision.
The closing submissions state that the police allegations ought not be considered a “factual change”, for the purposes of what is said in Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500, as none of the allegations have been supported by tangible evidence. The closing submissions cite Minister for Immigration Affairs v Pochi (1980) 44 FLR 41 for the proposition that the Tribunal needs to be satisfied by some rationally probative evidence and not merely evidence raised before it as a matter of suspicion or speculation.
Finally, it is submitted that a discretionary power must not be exercised in a way that is legally unreasonable, citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. I understand that submission to mean that a decision contrary to the 2014 decision would be legally unreasonable.
B. The authorities
In Minister for Immigration and Multicultural and Indigenous Affairs v Watson (2005) 145 FCR 542 (Watson), Dowsett, Hely and Lander JJ considered whether the Minister had the power to revoke her own decision to cancel a visa pursuant to s 501(2) of the Act.
In his reasons, Dowsett J held that s 33(1) of the Acts Interpretation Act 1901 (Cth) did not apply to s 501(2), which, if it applied, would allow for the power to be exercised afresh or as provided in s 33(1) of the Acts Interpretation Act 1901, “from time to time as occasion requires”. [8]
[8] Watson at 543-544.

Further, Dowsett J held:
The Minister’s decision does not involve an exercise of discretion. The criteria for a particular visa are either satisfied or they are not. Of course, some criteria may involve discretionary considerations, but that is another matter. The existence of an unlimited power to revisit a decision to cancel a visa would not sit comfortably with the stringent provisions regulating the grant of visas imposed by Div 3 of Pt II. After all, the effect of such a decision may be, in effect, to grant a new visa. Similarly, if a decision to refrain from cancelling a visa could be revisited, the visa-holder would, notwithstanding such favourable determination, remain at risk of future cancellation upon the same factual basis as grounded the original decision. That would be an unsatisfactory basis for continued residence in this country. Neither outcome is consistent with the strict regulatory regime established by the Act. If it were possible to limit the time within which, or the circumstances in which, a decision might be revisited, the position might be otherwise. However, as far as I can see, there is no way of doing so.[9]
[9] Watson at 544.
In turn, Hely J held:
In my view, s 33(1) of the Interpretation Act (assuming it applies) does not have the effect that once there is a valid exercise of the s 501(2) power to cancel a visa, the visa can be effectively restored to the former holder by a second exercise of that power. Whilst the Minister has a discretion whether or not to exercise the s 501(2) power, the power in question is simply a power to cancel a visa which, if validly exercised, results in the former holder acquiring the status of an unlawful non-citizen with the consequences prescribed by the Act. There is no occasion for the re-exercise of the power once it has been validly exercised.[10]
[10] Watson at 546-547. See also 562-563, per Lander J.
In Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500 (Parker), Griffiths, Mortimer and Perry JJ considered whether the Minister could exercise the discretion conferred by s 501(2) of the Act, notwithstanding that his delegate had made an earlier decision. The Court held, dismissing the appeal, that where a new relevant fact emerges which potentially bears upon the exercise of the power under s 501(2), that power may be exercised to cancel a visa notwithstanding that there was an earlier decision based on more limited facts not to cancel the visa.
In the course of their reasons, Griffiths and Perry JJ held:
While acknowledging that the Minister’s power under s 501(2) was largely unfettered, the appellant submitted that an express limit on that discretionary power could be derived from the text of the provision in the sense that the phrase “may cancel” implied a singular action. This limitation, so it was submitted, meant that once a decision has been made not to cancel a visa under s 501(2), the power to cancel is spent, at least where the same factual basis for the making of the original decision endures and there are no new relevant facts. It was submitted that this construction was also supported by the obligation to provide a statement of reasons for a decision as required by s 501G(1).[11]
…
In our view, in a case such as the present, where a new relevant fact emerges which potentially bears upon the exercise of the power under s 501(2), that power may be exercised in an appropriate case to cancel a person’s visa notwithstanding that there was an earlier decision based on more limited facts not to cancel the visa. That construction is consistent with s 33(1) of the AI Act…
No contrary intention is manifested in the Migration Act to displace the presumption created by s 33(1). In particular, for reasons which are given in [48]-[50] below, we do not consider that s 501A constitutes the only source of the power to revisit an earlier decision not to cancel a visa. Rather, s 501A is directed to a particular situation where the facts have not changed and the Minister takes a different view to the original decision-maker and wants to set aside that decision and substitute his or her own decision.
We do not consider that the phrase “may cancel” necessarily carried with it the notion that, in the case of a decision not to exercise the power, the power may only be exercised on the one, single occasion and is then spent. Rather, this phrase indicates that there is a discretionary power whether or not to cancel and a separate question then arises as to whether s 33(1) of the AI Act applies to the exercise of that power from time to time or whether the presumption is displaced by a contrary intention.[12]
[11] Parker at 510.
[12] Parker at 511.
Their Honours distinguished Watson on the basis that it was a case concerning whether the Minister had the power to revoke her own earlier decision to cancel a visa under s 501(2) on character grounds.[13] In addition, they held that Watson was to be distinguished as it was a case where there was no change to the factual basis of the decision.[14]
[13] Parker at 512.
[14] Parker at 514. See also Mortimer J, at [69]-[70], stating “where there were new facts and circumstances, and the question whether s 501(2) is available where there are no new facts and circumstances should await determination in an appropriate case.”
C. Application
The Applicant’s submissions in relation to the consequence of the 2014 decision upon the present review, in particular that the power was then exhausted, significantly elide the fact that the present reviewable decision is a decision in relation to a separate visa application made by the Applicant. A power exercised, that is the decision/s not to refuse in 2014, could not exhaust a power not yet arising and not sought to be exercised.
In addition, whether the 2014 decision or decisions are able to be remade or enlivened could not arise, as the decision to refuse to grant the Bridging Visa was a consequence of an application for a separate visa made by the Applicant on 26 October 2017.
As a consequence of the Applicant’s actions a fresh power to decide was enlivened. Once the Applicant made the current application for the Bridging Visa on 26 October 2017, the Act provided for the determination of that application. As a result, the power granted to the Minister’s delegate to consider and decide whether to refuse to grant the Applicant the Bridging Visa or not was enlivened and is referable to that separate and fresh application. Nothing in the authorities relied upon by the Applicant bear upon that conclusion. Parker and Watson concern decisions following from an original decision: whether to revoke the Minister’s own decision to cancel a visa pursuant to s 501(2) of the Act in Watson and whether the Minister could exercise the discretion pursuant to s 501(2) of the Act, notwithstanding that his delegate had made an earlier decision in circumstances where a new relevant fact emerges.
Clearly, the present application was made by the Applicant on the basis of his own personal circumstances, that is, to enable him to return to Vietnam while a pending review in relation to a separate visa application is determined.
My conclusion that the present application for review is not affected by an earlier decision or decisions in relation to different visas determines the first and second submissions made by the Applicant in relation to the 2014 decision or decisions.
As an aside, I consider that the Applicant’s first submission that the 2014 decision, once made, exhausted the power in s 501(1) in relation to the Applicant’s visa application is unsustainable as, contrary to the proposition sought to be relied upon in Watson, the decision in Parker makes plain that a discretion exercisable under s 501 of the Act may be exercised afresh where there is a new fact bearing upon the exercise of that discretion.[15] The fact that the Court in Parker was considering s 501(2) does not, in my opinion, alter the application of that proposition in relation to s 501(1); both powers arise in their sections by the word “may”. Clearly, the power exercised in 2014 did not exhaust the power to decide again the decision not to refuse the grant of that visa in 2014.[16] An interesting question arises as to whether a change in government policy could have provided a basis for revisiting an earlier decision based upon the same facts on the reasoning set out in Parker.[17]
[15] See also Minister for Indigenous Affairs v MJD Foundation Ltd (2017) 351 ALR 270, which considered the capacity to re-exercise a power under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).
[16] I accept the Applicant’s submission, in my reasons below, that the allegations made by the police in relation to the 2015 matters carry no weight as they amount to a mere allegation without author, detail, substantiation or a capacity to question and test those allegations but, for the reasons set out above, that finding is not determinative of these preliminary matters.
[17] A change in government policy is evident in the changes made to the directions that decision-makers must take into account, being the change from Direction No. 55, dated 25 July 2012, to Direction No. 65, dated 22 December 2014. Importantly, Direction No. 55 contained a requirement in Part B that decision-makers must take into account as a primary consideration international non-refoulement obligations which is no longer a primary consideration under Part B in Direction No. 65. Similarly of significance is the fact that the present Direction No. 65 requires decision-makers to consider as a primary consideration the expectations of the Australian community. See also Re Maikantis and Minister for Immigration and Border Protection [2018] AATA 40, which considers the differences between Direction No. 55 and Direction No. 65.
It follows also, in relation to the Applicant’s second submission, that there was no need for a new and relevant fact to emerge which potentially bears upon the exercise of the power for the present reviewable decision to be made as the 2014 decisions are not referable to the Applicant’s 26 October 2017 application for a departure bridging visa.
In relation to the Applicant’s third submission, if accepted, that submission would be entirely contrary to the requirement that decision-makers, once empowered by statute to make a decision, must exercise that power independently (not substituting the decision of another) and for a proper purpose, that is, by turning their mind to the decision before them. The Applicant’s third submission proposes, in effect, that a decision be made without consideration and application of the relevant facts that bear upon that decision. I reject that submission.
III. RELEVANT PROVISIONS OF THE ACT
Section 501(1) of the Act provides:
The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Section 501(6) and (7) of the Act relevantly provide:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more
Section 499 of the Act grants power to the Minister to give directions:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
…
(2A)A person or body must comply with a direction under subsection (1).
Ministerial Direction No. 65 made under s 499 of the Act, currently applies to decisions made pursuant to s 501(1) (Direction No. 65).[18] Direction No. 65 sets out the objectives of the Act along with general principles and guidance in relation to the manner of exercising the discretion contained in s 501(1).
[18] The Direction was made on 22 December 2014.
Direction No. 65 provides at paragraph 6.1(1):
The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
The Direction then sets out a number of principles at paragraph 6.3:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
(Emphasis added.)
Paragraph 7(1) sets out how to exercise the discretion:
Informed by the principles in paragraph 6.3 above, a decision-maker:
a) must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
(Emphasis added.)
Paragraph 8 explains how decision-makers are to take the relevant considerations into account:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
(Emphasis added.)
As referred to in paragraph 8 of Direction No. 65, the considerations are in three parts, which apply to the decision depending on the circumstances. Part B applies to visa applicants and provides, at paragraph 11(1), the three primary considerations:
In deciding whether to refuse a non-citizen’s visa, the following are primary considerations:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian Community.
Each of these primary considerations are then explained further in Part B.
Direction No. 65 prescribes, at paragraph 12(1), certain other considerations that must be considered, if and where they apply:
In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Impact on family members;
c) Impact on victims;
d) Impact on Australian business interests.
The primary and other considerations are considered further at the application stage of these reasons.
In relation to the balancing of the various considerations under Direction No. 65, the authorities provide that:
(a)the Tribunal is obliged to consider the Direction and assess the degree of the considerations and, having done so, it must “put its conclusion on the issue on the scales in the manner provided for by the Direction”: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 589, per Whitlam and Gyles JJ.
(b)The Tribunal is not bound to accept the version of events put by the applicant, the decision-maker will give the applicant’s story such weight as he or she considers appropriate in all the circumstances: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 427, per Davies J.
(c)When applying the discretion, the Tribunal must genuinely weigh factors leading to opposite conclusions and not artificially limit any of the factors: Hong v Minister for Immigration and Multicultural Affairs [1999] FCA 1567 at [20].
IV. APPLICATION
These reasons proceed, in accordance with s 501(1) of the Act, to consider:
·first, whether the Applicant passes the character test as defined by s 501(6) of the Act and specifically, whether the Applicant fails the character test contained therein because he has a substantial criminal record; and
·second, whether the discretion contained in s 501(1) should be exercised to refuse to grant the Applicant the Bridging Visa.[19]
[19] This is also expressed by Direction No. 65 as follows: informed by the principles in the Direction, and taking into account the considerations in Part B, whether the Applicant will forfeit the privilege of being granted a visa.
A. Whether the Applicant passes the character test
The Applicant will have a substantial criminal record if, among other things, he has been sentenced to a term of imprisonment of 12 months or more or he has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more.[20]
[20] Section 501(7)(c) and (d) of the Act.

For the purposes of making that determination under s 501(7) of the Act, it is the term of imprisonment to which the applicant was sentenced, not the term actually served, that is relevant: Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409 at 415-18, per Bowen CJ and Deane J.
A sentence to a term of imprisonment which is suspended falls within the section: Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113.[21]
[21] In Brown, consideration was given to the application of concurrent sentences and the meaning of substantial criminal record for the purposes of the Act.
On 9 August 2011, the Applicant was sentenced to 21 months’ imprisonment with 12 months suspended for two years.
I am satisfied that the Applicant does not pass the character test as he has a substantial criminal record, as prescribed under s 501(7)(c) of the Act, by virtue of having been sentenced to a term of imprisonment of 12 months or more.
B. Exercise of the discretion pursuant to s 501(1) of the Act
Part B of Direction No. 65 sets out three primary considerations and a number of other considerations.
1. Primary considerations
The Direction contains three primary considerations that must be taken into account being the:
(a)protection of the Australian community from criminal or other serious conduct;  
(b)best interests of minor children in Australia; and  
(c)expectations of the Australian community.[22]
Protection of the Australian community
[22] Paragraph 11(1).
The Direction provides that decision-makers should have regard to the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.[23] In relation to this primary consideration, decision-makers should have regard to the:
(a)nature and seriousness of the non-citizen’s conduct to date;[24] and  
(b)risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[25]  
[23] Paragraph 11.1.1(1).
[24] Paragraph 11.1.1.
[25] Paragraph 11.1.2.
Nature and seriousness of the conduct to date: paragraph 11.1.1(1) of the Direction provides:
In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:
a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
d) The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
e) The sentence imposed by the courts for a crime or crimes;
f) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
g) The cumulative effect of repeated offending;
h) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
i) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
(Emphasis added.)
In assessing, particular offences, the Tribunal may not impugn a sentence or put in issue the propriety of a conviction or the fairness of the trial.[26] The Tribunal may, however, examine the circumstances surrounding the commission of the relevant offence for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant’s criminal conduct: Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 at 358.
[26] Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at 240.
In Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354, Fisher and Lockhart JJ, at 358, stated:
The conviction is the genesis of the Minister’s power to deport. There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant’s criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial. Whether these circumstances and matters are susceptible of examination and the extent of that inquiry will vary from case to case. The matters which the Tribunal is called upon to determine are wider than and different from the questions which a trial judge and jury must determine.[27]
(Emphasis added.)
[27] CfMinister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, at [47] stating his “Honour did not say, nor do we take him to have meant, that the tribunal should feel free to disregard the findings of historical fact upon which the sentence was based, in particular findings as to the circumstances of the commission of the offence.”
Their Honours stated further at 359-360:
It is our opinion that the Tribunal is entitled to consider all evidence. It will attach appropriate weight thereto in its task of evaluating the conduct of the applicant; but not for the purpose of assessing the propriety of the conviction.
In Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at 244-245, the Court stated:
at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence.
…
While it stands, the conviction and sentence must be conclusive, so far at least as concerns a tribunal reviewing a decision that takes the conviction and sentence as its starting point.
These reasons now turn to consider, under the rubric of the nature and seriousness of the conduct to date, the:
(a)Applicant’s offence of cultivation of a commercial quantity of cannabis;
(b)Applicant’s escape from detention and his unlawful two-year stay in Australia; and
(c)Victoria Police allegation in relation to the 2015 cannabis cultivation.
The Applicant’s offence of cultivation of a commercial quantity of cannabis
On 9 August 2011, Rozenes CJ sentenced the Applicant to 21 months’ imprisonment with 12 months suspended for two years and provided his reasons for sentence.[28]
[28] G docs; G2 at 127-132.
The Chief Judge noted that the Applicant had pleaded guilty to one charge of cultivating a narcotic plant in not less than a commercial quantity, the maximum penalty for which is 25 years imprisonment. The offending occurred on 23 November 2010. The Applicant had no prior convictions.
Rozenes CJ stated:
You are not a co-accused with the others in any real sense beyond the fact that you were apprehended for similar offending as part of a targeted operation.[29]
[29] G docs; G2 at 128.
His Honour stated that the Applicant was arrested in Dandenong North where police located 391 cannabis plants weighing 31.66 kg in a number of rooms in the house, which were growing under lights and hydroponic watering systems. The electricity supply had been illegally bypassed.
Rozenes CJ noted that when interviewed, the Applicant denied any knowledge, however, he pleaded guilty at the committal mention.[30]
[30] G docs; G2 at 128.
The Applicant was a lawful noncitizen at the time of offending and became a unlawful noncitizen on 8 February 2011.
Rozenes CJ stated:
The Prosecution concede that your role was what is commonly known as a “crop-sitter”, in that you did not have a commercial interest in the final product beyond minding the crop for reward.[31]
[31] G docs; G2 at 128-129.
His Honour referred to a report from Dr Margaret Cutajar, dated 17 July 2011, stating that the Applicant was a low risk of reoffending.[32]
[32] G docs; G2 at 129.
Rozenes CJ found:
The cultivation of cannabis in commercial quantities is a serious offence carrying a maximum penalty of 25 years imprisonment. Production of cannabis hydroponically in domestic premises has become prevalent and once the electricity supply has been bypassed it is difficult to detect. General deterrence of community protection must therefore play a significant role in the sentencing process.
That is so notwithstanding as is the case here that you were only involved at a menial level in what has often been described as “crop sitting”. I accept that you did not have any involvement in the initial setting up of the crop and did not expect any substantial reward from its cultivation.… I of course only sentence you for your involvement and not that of others but it is clear that crop sitters such as yourself constitute a necessary element to a successful undertaking. Without people such as yourself the enterprise would fail.
As I have previously stated, it is difficult to significantly distinguish between the culpability of those accused in this operation whose role is simply that of crop sitters. Having said that, I note that the number of plants here is more than three times, in fact almost four times the minimum for a commercial quantity.
You entered into this arrangement motivated by profit. You do not have the advantage of youth as others who I have sentenced for similar offending in this operation have. I accept that you were taken advantage of in the sense that you were desperate for money and this seemed an easy way out. I take into account your early plea of guilty, that your time in custody has been difficult in the sense that you are isolated from your family in Vietnam, as well as those matters previously outlined and contained in the written submissions. I also take into account that you have no prior convictions and that you will be deported as soon as you are able to be released. I also take this last fact into account in deciding to suspend part of the sentence rather than fixing a non-parole period.[33]
(Emphasis added.)
[33] G docs; G2 at 130-131.
The Applicant gave evidence at the hearing in Vietnamese, with the assistance of an interpreter. He was shown and affirmed his witness statement, dated 6 April 2018, along with a further statement, dated 22 November 2017, both of which were in Vietnamese accompanied by English translations.
The Applicant gave oral evidence that he had been at the house where he was arrested for several weeks. He said that he was asked to take care of the plants by friends-of-friends but when pressed he said that he was asked by one person who was also his friend but that he did not know that person well.
The Applicant said that he was told that the plants were medicinal herbs similar to those used in Vietnam. He was asked to water the plants and only came at night to do so. He said that he did not know that what was being grown was cannabis and that he had never heard of this plant before.
The Applicant said that he was asked not to tell anyone about the plants. When pressed as to whether this raised a suspicion in his mind, he said that he did not think about it and did what he was told.
The Applicant said that he was looking after the plants for money as he was having financial difficulties at the time. He said that he considered that what he had been promised was a large amount of money—between $500 to $1,000—but that the amount did not raise any suspicion in him.
When shown photos of the house, the Applicant said that he could not remember the cables to the ceiling and that he did not know whether the wiring in the house was unusual.
The Applicant submits that his role in the growing of cannabis “is recognised as virtually the bottom of the chain” and that the length of the sentence indicates that his offending was not considered to be particularly serious.[34] He submits that the offence did not involve violence or a sexual element and was not against vulnerable members of the community.
[34] Applicant’s Statement of Facts, Issues and Contentions at p. 6.
The Respondent provided a Statement of Issues, Facts and Contentions, dated 20 April 2018. The Respondent submits that in relation to the nature and seriousness of the 2011 offence, the fact that the Applicant was a first-time offender exacerbates the seriousness of the sentence that was imposed on him for his involvement in the drug cultivation.
Application
I take into account, having regard to the considerations in paragraph 11.1.1(1) of Direction No. 65, that the Applicant’s offence was not violent, did not involve sex offending, and was not in relation to vulnerable members of the community, each of which are factors that would tend to support a finding that the offence was serious. Similarly, I accept that the offence does not involve any frequency concerns or those as to the cumulative nature of offending. None of this is to say that, those factors absent, the offence ought to be given any less weight. The consequence of the absence of those factors neither weighs in favour nor against the Applicant in the circumstances of this case.
I take into account also the comments made by the Chief Judge at the time of sentencing, that the Applicant’s culpability is affected by the fact that he was a “crop sitter” with no commercial interest in the final product beyond minding that crop for reward. The Chief Judge stated that he was not involved in the initial set up of the illegal enterprise and did not derive a substantial reward.
However, the Applicant’s offence is serious having regard to the maximum penalty of 25 years. As the Chief Judge stated in sentencing, the production of cannabis hydroponically in domestic premises has become significant and even though the Applicant was sentenced for his involvement it is clear that persons like the Applicant are a necessary element to a successful undertaking without which the criminal enterprise would fail. Added to this, accepting the submission made by the Applicant that the use of cannabis in the community is somewhat socially accepted and not considered as seriously as other more serious drugs, the commercial cultivation of cannabis remains a serious offence attracting up to 25 years imprisonment and which, accordingly, imposes significant costs on the community in terms of policing and enforcement.
In finding that the Applicant’s offence is serious, I also take into account the fact that he was sentenced to 21 months incarceration as a first offence. I note the fact that part of the sentence was suspended rather than being included as a non-parole period. However, in making the decision to suspend a portion of the sentence, the Chief Judge made plain that he took into account that the Applicant was to be deported as soon as he was able to be released.
In relation to the nature of the offending, I do not accept the Applicant’s evidence that, at the time, he had no suspicions in relation to his conduct in attending to the cannabis plants arising from being told to keep secret his involvement or as a result of what he considered at that time to be a large reward for the work that he was being asked to undertake. In this regard, although understandable, to the extent that the Applicant would tend to minimise his offending for the purpose of giving evidence in relation to his visa application, I find that his evidence was, in relation to these facts, evasive and lacking in an adequate appreciation of the requirement to be open and truthful when giving evidence.
In summary, I find that the Applicant’s offending in relation to the cultivation of a commercial quantity of cannabis in 2010 to be serious and is a consideration that weighs in favour of the exercise of the discretion under s 501(1) of the Act to refuse to grant him the Bridging Visa.
The Applicant’s escape from detention and his unlawful two-year stay in Australia
On 23 August 2011, the Applicant, after completing his custodial sentence for the cultivation of cannabis, was transferred to the Maribyrnong Immigration Detention Centre to be held in immigration detention.
One week later, on 30 August 2011, the Applicant escaped custody.[35]
[35] The escape is described in a document entitled “Post Incident Review” (Exhibit H).
Following his escape, the Applicant remained and worked unlawfully in the community for approximately two years.
When asked about his escape from detention, the Applicant confirmed that he had attempted to escape with two others but that he was the only person who escaped after climbing over a fence. At the time, his evidence is that he did not realise that escaping detention was an offence. He did, however, know that he was not meant to escape.
The Applicant said that he was very much concerned during the two-year period that he was unlawfully in the community. He said that he was scared that he would be arrested and deported.
When asked what he did for work during that period, the Applicant said that he worked as a waiter in a restaurant for a short period but does not know how long. He said that he did not work much during that period and did not know that it was an offence to work in those circumstances.
The Applicant said that he saw a migration agent in the weeks before his arrest and detention but that he had not commenced any formal action prior to being arrested.
The Applicant’s submissions (which are made in relation to his earlier visa applications and are incorporated by reference in his opening submissions) state that:
he escaped [from detention] out of desperation and panic, worried that he would lose Ms Vu forever. As soon as he could, he found Ms Vu, told her of his feelings and they reunited, commencing living together.[36]
[36] G docs; G2 at 101.
The Respondent, in his submissions, places particular emphasis upon the Applicant’s escape from detention, which conduct he submits is very serious. The seriousness, it is submitted is supported by the fact that escaping from immigration detention is an offence under s 197A of the Act and carries a penalty of up to five years imprisonment.
The Respondent submits that the seriousness of the Applicant’s escape is exacerbated by the choice to continue to remain in the Australian community unlawfully over a two-year period, which the Respondent considers demonstrates dishonesty towards the Department. The Applicant, he submits, has conducted himself in a way that demonstrates a blatant disrespect for Australia’s immigration laws.
Application
The earlier observations in relation to the absence of violent, sexual or offences committed against vulnerable members of the community (in relation to the Applicant’s offence of cultivating cannabis in a commercial quantity) apply to consideration of the Applicant’s escape from detention.
I take into account, and it was not challenged during cross-examination, that the Applicant escaped detention in August 2011 out of desperation and panic and affected by his feelings for his then girlfriend, Mrs Vu. I also take into account that the Applicant has not been charged, tried or sentenced in relation to his escape from detention or his work in the community during the period when he was unlawfully residing in Australia.

However, I consider it relevant that paragraph 11.1.1(1) of the Direction No. 65 singles out for attention criminal offending or other serious conduct after a non-citizen escapes from detention, but before the non-citizen has been taken into immigration detention again, and which also states that an offence against s 197A of the Act is serious.
I do not accept the Applicant’s evidence insofar as he says that he did not know that there were laws against escape from detention and for working in the community whilst unlawfully present. A belief and understanding that such conduct gives rise to an offence under Australian law does not require a sophisticated appreciation of Australia’s laws. Given the Applicant’s involvement with the Australian legal system and his incarceration, his comprehension of the potential criminal consequences of his escape and working ought be regarded as more likely. Either way, and even if I am wrong in relation to this, I find that his comprehension that his actions in this regard were wrong amount similarly to an understanding that what he was doing was serious and punishable.
Whilst it may be accepted that the Applicant’s escape was understandable given what I have found in relation to his desperation and panic at being released from custody only to be taken once again into immigration detention, I find as most serious his staying in the community unlawfully for two years.
I also find, as a factor that tends to further affect the weight of his escape and prolonged unlawful residence, the fact that, even though by the Applicant’s own evidence he was very much concerned and afraid during this period, that he did not it any point in those two years communicate with the Department. The Applicant’s evidence and those of his wife tend towards an impression of the Applicant as a person much matured by his conviction and incarceration and focused upon leading a blemish-free life in Australia and committed to his wife and the prospect of having children. That characterisation is very much at odds with the fact that the Applicant did not contact immigration officials.
I find that the Applicant’s lengthy stay in Australia and work here as an unlawful resident shows that the Applicant had a blatant disregard for the laws of Australia. I find that his conduct in this regard is serious conduct and weighs heavily against him in the exercise of the discretion pursuant to s 501(1) of the Act.
The Victoria Police allegation in relation to the 2015 cannabis cultivation
On 2 January 2017, an officer of the Department sent an email to the Applicant’s legal representative noting that further information had been received, which may be taken into account in considering whether to refuse the Applicant’s visa application.
The Departmental officer invited the Applicant to comment on information contained in an attachment to that email entitled “Received from Vic Police on 22/12/17” (the 22 December 2017 Attachment).[37] The document itself is undated, does not include the name of its author, and is not on Victoria Police letterhead. It includes nine paragraphs over slightly more than one page, which are contained within quotation marks. The 22 December 2017 Attachment states that the Applicant is being investigated in relation to a commercial hydroponic cultivation that was detected in Box Hill in 2015. It states further:
Police will allege Mr CAO is connected to the cultivation as it was him that rented the premises from the owner/victim.
[37] G docs; G2 at 226-227.
The 22 December 2017 Attachment states that on 24 June 2015, police attended premises in Box Hill and discovered a hydroponic cannabis cultivation made up of 153 plants located in five rooms with an electrical bypass installed.
The 22 December 2017 Attachment states further:
The owner/witness will provide evidence that a male driving a vehicle (registered and owned by CAO) attended his premises and spoke with him with a view to renting his property. The witness/victim agreed to rent the property to the accused. The witness/victim took a photograph of CAO’s vehicle on that day. Police have a copy of this image which includes its registration plate. The victim took the photo at the time unbeknown to CAO as CAO did not have any identification with him. CAO gave an undertaking to provide this at a later time but as time progressed this didn’t happen. The victim/witness can provide a description of the person which is a match for CAO. The witness can also provide evidence that the person was Vietnamese and told him he had a young child with his wife and wanted a quiet place to rent. This is in line with Mr CAO’s situation at the time as he indeed had a young child.
The 22 December 2017 Attachment states that the Applicant was interviewed by police on 6 September 2017. It states that the reason for the delay between the offence being detected in 2015 and his interview was that his whereabouts were unknown.
The 22 December 2017 Attachment states that, when interviewed, the Applicant provided no reasonable explanation as to why his vehicle was driven to the address and no reasonable explanation, if it was not him, as to who was the person who drove his vehicle to the address. It notes that the Applicant’s previous conviction for cultivating a commercial quantity of cannabis will be included in the police brief as tendency evidence.
On 4 January 2018, the Applicant’s legal representative provided a response to the 22 December 2017 Attachment. The response stated that the information provided is incorrect and misleading and not consistent with the record of interview. As a consequence, the police information, it states, is significantly prejudicial to a fair and unbiased consideration of and refusal of his application for a bridging visa. The response details a series of inaccuracies in the 22 December 2017 Attachment on a paragraph-by-paragraph basis, including the allegation that the Applicant has a young child, which is clearly incorrect.[40]
[40] G docs; G2 at 228-236.
On 22 November 2017, the Applicant provided a statement in Vietnamese, with an English translation, from Christmas Island in support of his application for the Bridging Visa.[41] In terms of the 2015 incident, the Applicant stated:
I was flabbergasted when police questioning me about my car found in Box Hill in 2015. I confirmed that I loaned my car to a few friends and did not remember who was borrowing the car the time. I also confirmed strongly that I’ve never been to that house, I do not know who live there and who the owner or tenant was nor was aware of any criminal activity from that house. I do not know anything about that house as well as why my car parked there.[42]
[41] G docs; G2 at 176.
[42] G docs; G2 at 176.
The Applicant states that the police told him that his car had been photographed near a house in Box Hill on 21 May 2015 and that they had shown him a photo that had part of a numberplate showing but not all of it. He states:
I thought it could have been my car, but I was not sure.
I definitely had not been to that house, even if it was my car.[43]
[43] Exhibit A at [10]-[11].
The Applicant states that his car was lent to friends from time to time if “they needed a nice car for special occasion or if they wanted a reliable car for a long trip.”[44] Further, he says that, at the time, “I could not think of any particular person I had lent the car to in 2015 so I could not give the police a name of anyone I had lent the car to at that time.”[45] He then refers to remembering lending the car to at least three or four people in the months around that time.[46]
[44] Exhibit A at [12].
[45] Exhibit A at [13].
[46] Exhibit A at [14]-[15].
The Respondent submits that the allegation calls into question whether the Applicant has had further involvement in the cultivation of cannabis, alternatively, if it is not the Applicant who was involved, then the information calls into question whether the Applicant is still associating with people who are involved in the cultivation of cannabis. The Respondent accepts that there is an issue as to what weight is to be given to this information in light of the fact that no charges have been brought against the Applicant.
In Minister for Immigration Affairs v Pochi (1980) 44 FLR 41, Smithers, Deane and Evatt JJ considered the manner in which the Tribunal ought base a decision. Deane J (Evatt J agreeing) held:
In my view, the Tribunal was bound, as a matter of law, to act on the basis that any conduct alleged against Mr. Pochi which was relied upon as a basis for sustaining the deportation order should be established, on the balance of probability, to its satisfaction by some rationally probative evidence and not merely raised before it as a matter of suspicion or speculation or left, on the material before it, in the situation where the Tribunal considered that, while the conduct may have occurred, it was unable to conclude that it was more likely than not that it had. It seems to me that this conclusion follows, as a matter of law, from the authorities referred to and the reasoning advanced by the Tribunal to establish the proposition as a general principle to be observed by it as a matter of administrative practice.[47]
Application
[47] Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62.
I am troubled that the statement of reasons of the reviewable decision placed such emphasis upon the police allegations.[48] It would have been incumbent on the Department to not only require comment on what was such a significant factor but, in addition, it ought to have further particularised the allegations. As it is, the Applicant was left to give the evidence that he has ultimately given in relation to these allegations, which appear to have been discounted by the decision-maker on the basis that it is self-serving. I put the reviewable decision and my comments in relation to the reasons given to one side as the present task before me is to make the correct or preferable decision.
[48] G docs; G2 31 – 43.
On the basis of the materials before me, I find that I cannot be satisfied that the conduct referred to in the police allegation occurred. The unsigned, undated and unsupported police allegations are a clear example of suspicions and speculation that could not amount, without more, to evidence supporting a finding that the occurrence of the event was more likely than not.
In the absence of a formal statement, further evidence or a witness in support, I do not take into account even the fact of the allegation as a consideration that carries any weight against the Applicant.
Risk to the Australian community: in terms of the risk to community, Direction No. 65 provides at paragraph 11.1.2(1):
In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
Paragraph 11.1.2(3) provides that in considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
ii.evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
iii.the duration of the intended stay in Australia.
Nature of the harm should he engage in further criminal activity: I find that the harm to individuals, groups or institutions in the Australian community should the Applicant re-offend in relation to the offence for cannabis cultivation and the escape from detention and unlawful residence in Australia is not insignificant. Such conduct would cost the community in terms of policing, enforcement and lost revenue. However, I find that such harm as could occur in the future to be not as serious as other potential offences, for example, those perpetrated on vulnerable members of the community, or sex or violent offences. Given what I have found below in relation to the likelihood of the Applicant re-offending, this circumstance is of little weight.
Likelihood of re-offending: on 10 January 2014, Patrick Newton, a forensic and clinical psychologist, provided a psychological assessment of the Applicant in relation to pending migration matters at that time. Mr Newton met with the Applicant in his rooms on 17 December 2013 and then at the Maribyrnong Detention Centre on 10 January 2014.[49]
[49] G docs; G2 at 138-144.
Mr Newton stated that the Applicant had struggled with the acquisition of English and that this had curtailed his studies and that despite having undertaken further classes during his time in prison, his English language skills remained extremely rudimentary.[50]
[50] G docs; G2 at 139.
Mr Newton noted that the Applicant’s financial problems had developed slowly and had arisen out of his employment in low-paying work which was insufficient to meet his living expenses.[51]
[51] G docs; G2 at 144.
Mr Newton assessed the Applicant’s personality as indicating that he remains an immature man for his age and that while he essentially is prosocial in orientation, his sense of direction in life, his sense of identity and his views on major life issues all remain at an adolescent rather than adult level of maturity.[52] He stated further:
Mr Cao’s lack of maturity also manifests in a naïve and rather dependent interpersonal style. He lacks self-confidence and is quick to defer to others. As a result, he is prone to be lacking in assertiveness skills and to make decisions quickly before fully considering the broader implications of his actions.[53]
[52] G docs; G2 at 142.
[53] G docs; G2 at 142.
In terms of the risk of recidivism, Mr Newton stated:
The offending with which Mr Cao was charged did not include violence or sexual offending. It was not motivated by substance use or other behavioural factors that could exert a long-term criminogenic impact on Mr Cao. Rather, based on the evidence available it arose from situational factors in Mr Cao’s environment. These included: 1) his financial difficulties; 2) his engagement with associates who were themselves involved in criminal behaviour (through whom he was recruited); 3) the instability of his accommodation.
Compounding these difficulties, Mr Cao had deficits in his resources and coping abilities with which to manage his problems. Most notably, these included: 1) the absence of a stable pro-social relationships; 2) the lack of stable work and/or relevant work skills; and 3) a lack of integration into positive social networks within his community. There is no indication that Mr Cao was suffering any mental illness or other criminogenic factor of relevance.[54]
[54] G docs; G2 at 143.
Mr Newton went on to state that the Applicant has addressed many of the risk factors for recidivism. However, he noted that key areas that remain of concern were the Applicant’s poor level of English language skills and his lack of developed work skills:
While the continued impact of these issues is, therefore, considered to be noteworthy it is not taken to elevate his risk of recidivism beyond the ‘low risk’ range. I note that when Dr Cutajar assessed Mr Cao in 2011, she reached the same conclusion.[55]
[55] G docs; G2 at 143.
The Applicant said that he knows that he did the wrong thing in agreeing to look after the cannabis crop in 2010 and that he had paid the price for what he had done in prison. He said further:
I learnt an important lesson from that, and I am not the young and foolish person I was in 2010. I am older and wiser.[56]
[56] Exhibit A at [23].
The Applicant’s wife gave oral evidence at the hearing. She was shown her statement, dated 6 April 2018, which she agreed was true and correct. In that statement she referred to and relied upon another statement, dated 20 November 2017, submitted to the Department of Home Affairs. Mrs Vu’s statements are in Vietnamese and were accompanied by English translations. Mrs Vu gave evidence in Vietnamese with assistance provided by an English interpreter.
Mrs Vu said that she has never seen or heard anything that would make her wonder that the Applicant was getting involved in anything to do with drugs. Further, she said that he does not smoke cigarettes or drink alcohol much and he does not gamble.
Dat Thuong Nguyen, who is a friend of the Applicant and the Applicant’s wife, gave evidence in support of the Applicant. He provided a witness statement which he supplemented with oral testimony.
Mr Nguyen gave evidence that he met the Applicant in about 2009 at a party in Springvale. He said further that he saw the Applicant socially on occasion in 2009 and 2010. From about mid-2010 he did not see the Applicant for quite a long time and met him again by chance when shopping in Springvale in about 2015. At first, the Applicant was reluctant to tell about his absence but eventually he told Mr Nguyen that he had been imprisoned because he had been caught in a marijuana growing operation. Since then Mr Nguyen has been in touch with the Applicant on a regular basis and has become good friends with him.
Mr Nguyen said that the Applicant’s offence in relation to growing cannabis and his escape from immigration detention did not negatively affect his opinion of the Applicant who he believes is a good person.
In relation to the likelihood of the person engaging in further criminal other serious conduct, the Respondent, submits that the risk factors identified in Mr Newton’s report are liable to return, and accordingly, the Tribunal cannot be satisfied that the Applicant is not a risk of reoffending, with the effect that the Respondent submits that the Applicant’s risk of reoffending is greater than the “low risk” assessed by Mr Newton.
Application
I have taken into account the matters referred to in paragraph 11.1.2(3) of Direction No. 65. I find that there is a low risk that the Applicant would reoffend. Put another way I do not consider that the Applicant represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community.
I accept the Applicant’s evidence that he is committed to a law-abiding life in the future and that he has learned his lesson and will not offend again. In reaching that finding, I have taken into account the fact that the most serious offence in relation to cannabis cultivation was a one-time offence, the circumstances of his escape from detention, and the evidence that the Applicant has married and settled down.
The best interests of minor children
As there are no relevant minor children in Australia, the primary consideration in relation to the best interests of minor children does not arise to be considered in the Applicant’s case.
Expectations of the Australian community
In relation to the primary consideration regarding the expectations of the Australian community, Direction No. 65 provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.[57]
[57] Paragraph 11.3(1).

Paragraph 6.3, which sets out the principles that inform the decision, by application of paragraph 7, to refuse to grant a visa or not contains, at paragraph 6.3(2), a principle directed to the expectations of the Australian community:
The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
Also relevant in the circumstances of this case are the following principles from paragraph 6.3:
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
In Uelese v Minister for Immigration & Border Protection, Robertson J stated:
In my opinion, the reference by the Tribunal to what the Australian community expected of the Australian Government was not a matter that required evidence but was a statement of the views or policy of the Government. The language in paragraph 6.3(2) of the Direction, that the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia, is found in a list of seven “Principles”.
...
[Then referring to paragraph 9.3 in Part A and stating further.]
In my opinion it is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community and for the Tribunal to act on that statement.[58]
[58] Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296 at 309.
In Re Do and Minister for Immigration and Border Protection, McCabe DP stated:
A decision-maker is, to some extent, required to guess at the community’s expectations... As I begin my deliberations, I assume the Australian community would be fair-minded and mature... The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgment about the individual and what should be done.[59]
[59] Re Do and Minister for Immigration and Border Protection [2016] AATA 390 at [23].
In Re Waits and Minister for Immigration and Multicultural and Indigenous Affairs, Block DP stated:
the expectations of the Australian community should be taken to be the expectations of the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.[60]
[60] Re Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
I agree with the abovementioned statements, in summary, that the Minister may, and has, provided a statement of the government’s views as to the expectations of the Australian community. I also agree that the views of the Australian community that I must take into account are those of members of that community who are informed, reasonable, fair-minded and mature.[61] I am of the view that those members, to the extent that they are informed, have knowledge of all of an applicant’s relevant circumstances.[62]
[61] See also discussion of the character of the community expectations in Direction No. 65: YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [31] and [76], per Mortimer J; and Ayache and Minister for Immigration and Border Protection [2018] AATA 310 at [65]-[66], per Forgie DP. See also Respondent’s Statement of Issues, Facts and Contentions at [76].
[62] The fact that the Australian community referred to is expected to have specific knowledge of an applicant is a natural consequence of the words in paragraph 11.3(1) of Direction No. 65, among other things, that visa refusal “may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa.”
The Applicant submits in relation to community expectations that the nature of his offending, being one offence of cultivating cannabis, is not such that the Australian community would expect him not be granted a visa. He submits that the Australian community in 2017 has, if anything, become more tolerant of cannabis to the point where in some states it is no longer a criminal offence to possess or use cannabis.
The Applicant submits further that it would be entirely contrary to the expectations of the Australian community if the Applicant were not granted a visa on the grounds that he has been investigated for an offence, but has not been charged, will not be charged, and therefore there will never be any finding of guilt made against him in relation to the matter under investigation. As I have found that the police allegations do not weigh against the Applicant, this issue does not arise.
The Respondent submits that the community’s expectations weigh in favour of a decision to refuse to grant the visa to the Applicant.[63]
[63] Respondent’s Statement of Facts, Issues and Contentions at [77]-[79].
The Respondent submits that the Applicant engaged in serious offending (being the cultivation of cannabis) less than three years after his arrival in Australia. In engaging in the cultivation of cannabis to make money, the Applicant placed his own financial needs and wants above the interests and safety of the Australian community, and individual members of that community.
The Respondent submits that the Applicant further breached the trust of the community by escaping from immigration detention (which is a criminal offence) and by living in the community for over two years as an unlawful non-citizen.
Application
I find that the Australian community, composed of community members with knowledge of all of the Applicant’s relevant circumstances, and who are reasonable, fair-minded and mature would expect that the Applicant should not be granted the Bridging Visa.
The Applicant’s conduct, taken together, in all the circumstances, in committing a serious crime while on a student visa, coupled with his escape from detention and his lengthy unlawful stay, but also taking into account, in his favour, his recent lawful conduct, forms the basis of the expectation that the Applicant not be granted the Bridging Visa.
As provided in Direction No. 65, I consider that in the circumstances of the Applicant, that the Australian community would have character concerns such that it would expect him not to be granted a visa.
The Australian community, as Direction No. 65 provides, has a low tolerance for criminal or other serious conduct by visa applicants.
I also take into account, in relation to the expectations of the Australian community, the fact that the application for the Bridging Visa is made on a departure basis. This is a fact that weighs in the Applicant’s favour at this stage. However, taking into account all of the relevant circumstances, including those referred to below when considering this fact as a separate consideration, I find that it is insufficient to displace the community expectation that the Applicant should not be granted the Bridging Visa.
2. Other considerations
Direction No. 65 provides for other considerations in addition to the primary considerations. The Direction states:
In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Impact on family members;
c) Impact on victims;
d) Impact on Australian business interests.[64]
[64] Paragraph 12(1).
I do not consider any international non-refoulement obligations, the impact on victims, and the impact on Australian business interests, as there is no evidence before the Tribunal in relation to these considerations.
Impact on family members
Direction No. 65 provides, at paragraph 12.2(1), in relation to the impact on family members:
Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely[65]
[65] Paragraph 14.2.
Mrs Vu said that she currently works in a nail shop from two to three days a week earning approximately $400 a week. She said that the couple also received as income payments from the Applicant’s parents amounting to approximately $1,500 per month.[66]
[66] Counsel for the Applicant sought to re-examine him in relation to a new fact being payments that he received from his family in Vietnam. The question arose as to whether such new facts were affected by the two-day rule in the Act. I am satisfied, however, that those questions arose logically from the Applicant’s cross-examination in relation to his financial circumstances and his employment history. In relation to this, the Applicant said that aside from his wife’s income he received from his family around $1500-$2000 monthly depending on how much he asked for. His family are able to forward those payments because of money that they receive from their farming business and from buying and selling properties.
Mrs Vu states that she has lived in Australia since 2007 and has passed the citizenship test and is waiting for the citizenship ceremony. She states that she has become settled in Australia and has good work here.[67]
[67] G docs; G2 at 179.
Mrs Vu said that she hoped to have children. If they were to have a child, she explained that it was her intention to stay at home. She states that her health has not been at its best and that her health is impacting upon on her desire to have children. She states further:
As I am getting older my hopes of having children are also severely affected by Thuc now being detained.[68]
[68] G docs; G2 at 179.
Mrs Vu said that if the Applicant was required to return to Vietnam she would accompany him. She stated, in that context, that she would need to know why he had been treated unfairly like that.
Mr Vu said that before coming to Australia she had lived with her parents. She said that her family, parents and younger unmarried brother, were still in Vietnam and that she remained in contact with them.
Mrs Vu states that she has been alone since her husband was taken into immigration detention. She said that it has been a very hard time for her because she loves the Applicant and that he has been a very caring person for her.
Application
I consider that the impact on the Applicant’s wife of his not being granted the Bridging Visa weighs in favour of the Applicant.
That said, it is difficult to assess this consideration in the context of this being an application for a Bridging Visa on a departure basis pending the Applicant’s review application of the Partner visa decision. I consider the departure grounds further below. Either way, I consider that the impact on the Applicant’s wife, albeit weighing in favour of the Applicant, is not a significant consideration in favour, as the impact on her has no special features, she is not financially dependent upon his income, she has recent and significant connection with Vietnam and she has said that she will return to Vietnam should the Applicant be refused a visa.
The departure basis for the Bridging Visa
I consider that the departure basis of the Bridging Visa is a consideration to be taken into account, and I have taken it into account at arriving at a decision. I note that as matters stand the Applicant will be returned to Vietnam either by a refusal to grant him the Bridging Visa or by grant of that visa.
There are various aspects, in all of the Applicant’s circumstances, that need to be considered when determining the weight to be given to this consideration.
The consequence of a refusal to grant the Bridging Visa, as explained by the Department’s letter to the Applicant on 19 February 2018, was that the Third Bridging visa was also taken to be refused pursuant to s 501F of the Act.
The Applicant along with the Respondent failed to place any emphasis on the departure basis as a consideration that ought affect the present decision. It was submitted by the Applicant that the current decision in relation to the Bridging Visa would impact on the Applicant’s subsequent prospects of remaining in Australia. It is not clear on what basis the Applicant makes that submission other than by reason of the automatic refusal of the Third Bridging visa, as already explained. It was not questioned, however, that I must apply s 501(1) of the Act in line with Direction No. 65 in arriving at the present decision.
As a result of the failure to call evidence, there was no evidence as to what the departure basis means in terms of the Applicant’s return to the community or the length of time he would spend in the community.
Another lengthy process of application and review with regard to the Applicant’s Third Bridging visa, given the Applicant’s history of applications for review, or given the many visas applied for by the Applicant, is also a circumstance going to the weight of this consideration.
Taking into account all of these circumstances, on balance, I find that the departure basis weighs moderately, and no more, in favour of the Applicant.
The evidence of the Applicant’s good character
I have taken into account evidence of the Applicant’s good character as a further consideration in making a decision.
Ms Duong gave evidence at the hearing and was shown a statement, dated 6 April 2018, which she agreed was true and correct. Ms Duong gave evidence in Vietnamese although her written statement was in English.
Ms Duong came to know the applicant following his release in 2014. She gave examples of his generosity including picking up her daughter from day-care when her shop was very busy and another occasion when she became ill and he took her to the doctor and then to the chemist. Ms Duong states that the Applicant is completely trustworthy and that on one occasion he took her daughter to the park and looked after her for three hours while the shop was very busy.
Ms Duong states that she knows that Mr Cao has been imprisoned for nine months because of his conviction for cultivating cannabis and that he escaped immigration detention.
Ms Xuan, who is Ms Ha’s older sister, gave evidence at the hearing. She was shown a witness statement, dated 6 April 2018, in Vietnamese along with an English translation, which she agreed was true and correct subject to two minor corrections in relation to dates.
Ms Xuan says that she knows about the Applicant’s conviction for growing cannabis crop and also that he absconded from immigration detention.[69]
[69] Ms Xuan was cross-examined in relation to the Applicant’s offending. She said that she was told that he was imprisoned because of cannabis cultivation but that she did not ask how long he spent in prison. When asked whether she knew that the Applicant had remained in the community without a visa she said that she did not know. That statement is somewhat difficult to reconcile with her written statement in which she says that between 2011 and September 2013 she was aware that Mr Cao’s Visa had expired and discussed with him that he and her sister should get married.
Ms Xuan states that she got to know the Applicant after he was granted a temporary partner visa and released from detention. She says that she was pleased to discover that he is a very caring person and that he took very good care of Ms Vu who is not in good health. This included doing things for her around the house and sharing the domestic tasks.
Ms Xuan states that if she needed to go out she could leave her children with the Applicant and he would look after them for her. She stated that he was very good with children. When discussing her child, during oral evidence, Ms Xuan became emotional and stated that thanks to the Applicant’s time with her child that his health had improved.
Reverend Thang Vu, Parish Administrator of Catholic Parish of Ivanhoe who was involved in the Catholic Eucharist at Port Philip Prison Chapel, provided a reference for the Applicant noting his strong interest in prayer and spiritual matters which helped him to control his temper through his actions.
Mr Nguyen said that the Applicant is polite and generous and provided specific examples of his generosity.
Application
I find that the evidence of the Applicant’s good character weighs in favour of his application. It is not without significance that a number of people were prepared to provide a statement and give evidence in support of his application. I find, however, that the evidence of good character does not weigh heavily in the Applicant’s favour because the evidence given amounts to little more than that he has been a good friend to the deponents and others. That said, I have taken this consideration into account.
V. CONCLUSION
For the above reasons, the decision under s 501(1) of the Act for review is affirmed as follows:
First, I find that the Applicant fails the character test as defined by s 501 of the Act because he has a substantial criminal record.
Second, I find that the Applicant, having failed the character test, ought not be granted the Bridging Visa on the basis of all of the matters and findings referred to above, including that:
Primary considerations
(a)The Applicant’s offence of cultivating cannabis in a commercial quantity is serious.
(b)The Applicant’s lengthy stay in Australia and work here as an unlawful resident is serious and weighs heavily against him as, in part, it shows that the Applicant had a blatant disregard for the laws of Australia.
(c)There is a low risk that the Applicant would reoffend.
(d)The Australian community, composed of community members with knowledge of all of the Applicant’s relevant circumstances, and who are reasonable, fair-minded and mature would expect that the Applicant should not be granted the Bridging Visa.
Other considerations
(e)The impact on the Applicant’s wife, albeit weighing in favour of the Applicant, is not a significant consideration in favour, as the impact on her has no special features.
(f)The departure basis of the Bridging Visa, on balance and taking into account all of the relevant circumstances, weighs moderately in favour of the Applicant.
(g)The evidence of good character weighs in the Applicant’s favour but is not a significant consideration.
VI. DECISION
The decision under review is affirmed.

212. I certify that the preceding 211 (two hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of Senior Member R. Pintos-Lopez

[sgd]........................................................................
Associate
Dated: 14 May 2018

Date of hearing: 3 - 4 May 2018

Counsel for the Applicant: Mr Danny Cole

Advocate for the Respondent: Ms Eleanor Cannon

Solicitors for the Respondent: Clayton Utz

[38] G docs; G2 at 226.

[39] G docs; G2 at 226. The quality of the copy in the G docs might give rise to what appear to be some typographical errors. These are corrected in the above extract.

Date of hearing:	3 - 4 May 2018
Counsel for the Applicant:	Mr Danny Cole
Advocate for the Respondent:	Ms Eleanor Cannon
Solicitors for the Respondent:	Clayton Utz